Antitrust, Federalism, and the Regulatory Process: A Reconstruction and Critique of the State Action Exemption after Midcal Aluminum

41 Pages Posted: 29 May 2009

See all articles by William H. Page

William H. Page

University of Florida - Levin College of Law

Date Written: May 28, 2009

Abstract

This article, published in 1981, examines the two-part Midcal Aluminum standard for state action antitrust immunity. Under that standard, private actors are immune from antitrust liability if (1) they act pursuant to a regulatory policy that is clearly articulated by the state as sovereign and (2) the state actively supervises their conduct. The article endorses the clear articulation requirement, but argues for abandonment of the active supervision requirement. Clear articulation provides an appropriate basis for deference to state economic choices made through legitimate political processes. Active supervision, however, the article argues, bears no necessary relationship to the legitimacy of the state’s regulatory scheme. It unjustifiably relies on command-and-control regulatory structures as a measure of the substantive legitimacy of the state’s regulatory policy.

For the more recent views of the author on the state action doctrine, see William H. Page and John E. Lopatka, State Action and the Meaning of Agreement Under the Sherman Act: An Approach to Hybrid Restraints, 20 Yale J. Reg. 269 (2003) and William H. Page and John E. Lopatka, State Regulation in the Shadow of Antitrust: FTC v. Ticor Title Insurance Co., 3 Sup. Ct. Econ. Rev. 189 (1993).

Keywords: Antitrust, State Action, Midcal Aluminum

Suggested Citation

Page, William Hepburn, Antitrust, Federalism, and the Regulatory Process: A Reconstruction and Critique of the State Action Exemption after Midcal Aluminum (May 28, 2009). Boston University Law Review, Vol. 61, p. 1099, 1981. Available at SSRN: https://ssrn.com/abstract=1411382

William Hepburn Page (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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